Attempts to challenge qualified immunity are ramping up among attorneys and activists

Of the numerous 9th U.S. Circuit Court of Appeals cases that upheld qualified immunity for public defendants this year, at least one might be on its way to the U.S. Supreme Court in a bid to hold police officers accountable for what plaintiffs say are constitutional rights violations. But attempts to challenge the qualified immunity doctrine are also being waged by others, including attorneys litigating cases in district court, activists, and perhaps high court justices, too.

On Oct. 17, the 9th Circuit denied a petition for a rehearing en banc by the plaintiffs in Jessop v. City of Fresno, 2019 DJDAR 8549 (9th Cir. Sept. 5, 2019). A month earlier, a circuit panel affirmed the district court's decision to grant the City of Fresno and its police officers qualified immunity from the lawsuit, which accused the officers of seizing about $275,000 in cash and goods from the plaintiffs during an investigation.

The plaintiffs' next option would be to file a petition to the Supreme Court, but the likelihood it would be heard is unclear. In 2019, the court rarely granted certiorari to 9th Circuit cases involving qualified immunity. One of the few was from Orange County, Emmons v. City of Escondido, 2019 DJDAR 3430 (9th Cir. Apr. 26, 2019). In Escondido, the plaintiff sued after he was tackled by a police officer while leaving his daughter's house. The officer had been responding to a domestic violence call at the residence.

But for Jay Schweikert, a policy analyst with the Cato Institute's Project on Criminal Justice who has worked on multiple efforts to challenge qualified immunity, the reluctance of the high court justices to review more cases doesn't necessarily mean they have no plans to seriously consider the contested doctrine. Schweikert pointed to how the court has repeatedly delayed considering an unpublished qualified immunity case in the 6th Circuit, Baxter v. Bracey, 18-5102 (6th Cir. Nov. 8, 2018), as possible evidence that the court is working strategically.

Baxter was supposed to be considered Oct. 1, Schweikert said in an interview last week, but the conference has been rescheduled three times. "What I think may be happening here is that there are two other recent major qualified immunity cases at the appellate level that came out over the summer," he said.

The court "may be holding off on making a decision re Baxter so that they can consider it along with these other major cases that are all raising the same fundamental question about reconsidering qualified immunity," Schweikert said.

"It's also possible that there are one or more justices who want to write separately on this issue, so even if the court isn't going to grant [certiorari], they may want to give those justices an opportunity to write with respect to all of these at the same time," he said.

In a 2017 concurrence in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), Justice Clarence Thomas expressed his "growing concern" with qualified immunity jurisprudence. Noting the Civil Rights Act of 1871 "established causes of action for plaintiffs to seek money damages from government officers who violated federal law," Thomas wrote that in practice, "instead of asking whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff's claim under Section 1983, we instead grant immunity to any officer whose conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Individuals and organizations across the ideological spectrum have since expressed similar criticisms. An amicus curiae brief in support of Baxter's petition for certiorari, for example, was submitted by parties as varied as The Law Enforcement Action Partnership, the NAACP Legal Defense and Education Fund, and the R Street Institute, a libertarian think tank.

Many attorneys are especially wary of one facet of the doctrine: In order for plaintiffs to successfully argue a public entity has violated their constitutional rights, the plaintiffs must prove the violation was clearly established as such.

Benjamin L. Pavone, of Pavone & Fonner LLP in San Diego, said under the logic of qualified immunity, "now officers are only liable for things they clearly know not to do." The problem with this, Pavone added, is "the courts don't have to publish things. Let's suppose we agree that torturing people is really wrong. But the courts just refuse to publish a case. If the courts refuse to publish a case, then the officers never get formal notice, so the officers in theory torture people and say, 'Hey, I never knew not to torture. There was no published case.'"

But Daniel P. Barer, a partner at Pollak, Vida and Barer in Los Angeles, who is representing the city officers in Jessop, disagreed that the 9th Circuit in particular isn't publishing enough cases involving qualified immunity.

"Ever since the Supreme Court decision in White v. Pauly [137 S. Ct. 548, 551 (2017)], I've seen an increase in the number of published 9th Circuit decisions discussing qualified immunity and whether particular conduct a) violates the Constitution and b) if it does, whether the law was clearly established," he said in an interview last week.

In the future, he added, "qualified immunity may be found in fewer cases based on the published 9th Circuit decisions ... because as the 9th Circuit addresses particular conduct which is alleged to be a violation of a constitutional provision, and says, 'Yes, this is a violation of the Fourth or 14th Amendment,' or 'No, it is not,' the law is increasingly becoming clearly established."

Still, it can often be difficult for plaintiffs to find published cases whose details sufficiently match their own. This is precisely the issue Pavone encountered when the 9th Circuit upheld qualified immunity for state defendants in Hines v. Youseff, 914 F.3d 1218 (9th Cir. Feb. 1, 2019). A consolidated appeal effort that encompassed multiple cases, Hines was filed by hundreds of current and former prisoners who were exposed to Valley Fever while incarcerated in the Central Valley.

The court argued that because it never published a case that specifically obligated state officials to protect inmates from Valley Fever, it would not have been "obvious" to prison officials that they were violating the plaintiffs' constitutional rights by not trying to better insulate them from the disease.

"It's such a complete stripping of 42 U.S.C. 1983," Pavone said of qualified immunity. "It literally limits the entire field of wrongs, and our Constitution wasn't built with a list of everything that would be considered a civil rights violation. It sets standards."

Pavone's petition to bring one of the cases, Smith v. Schwarzenegger, 137 F. Supp. 3d 1233 (E.D. Cal. 2015) to the U.S. Supreme Court was denied Oct. 7.

The plaintiffs' attorneys in another case, Nicholson v. Gutierrez, 2019 DJDAR 7974 (9th Cir. Aug. 22, 2019) ran into the same issue. The plaintiffs sued the LAPD, the City of Los Angeles, and one police officer, Miguel Gutierrez, after Gutierrez fired shots at them in 2015. At the time, the plaintiffs were teenagers and were rapping and dancing in an alleyway before school with two other friends, one of whom was holding a toy gun. Gutierrez believed it was a real gun and fired into the alleyway, aiming at the gunholder. One of the shots instead hit a different teen, one of the plaintiffs, in the back.

Although the 9th Circuit agreed with the plaintiffs' argument that Gutierrez's actions had violated their rights under the Fourth and 14th Amendments, it granted Gutierrez qualified immunity because "no binding circuit or Supreme Court precedent has established a substantive due process violation under comparable circumstances."

"What was interesting in the decision in the court of appeals," said Herbert-John S. Hayden of Harris & Associates in Los Angeles, was the court "basically agreed that [Gutierrez's] conduct was reckless. But since there's no precedent, they said they would grant qualified immunity with respect to the shooting itself."

"We're a little disappointed that the law has not evolved in terms of establishing rights for innocent bystanders who happen to be shot, wounded, or harmed or some way by a derelict police officer," added John. W. Harris, who is principal at the same firm, which represented the plaintiffs. "But until Congress or the Supreme Court enacts a law or rules differently, that's going to be the state of play for a long time."

Since the spring of 2018, the Cato Institute has tried to challenge qualified immunity through several approaches, said Schweikert. The organization has hosted forums, filed amicus briefs, and tried to develop a coalition of public interest groups that oppose the doctrine. It has also tried to target legislation. Qualified immunity "is not a constitutional doctrine," Schweikert said. "This is a nominally state statutory interpretation doctrine that Congress could fix if it wanted to."

To that end, the Cato Institute is "working on finalizing a white paper, among other things, that will provide potential statutory language that Congress could adopt if it wanted to," Schweikert added. "That's still all in the preliminary stages, but we've been working on the congressional side as well."

Martin Buchanan, a certified specialist in appellate law whose firm, Law Office of Martin N. Buchanan APC represented the plaintiffs in another qualified immunity case, Horton v. City of Santa Maria, 2019 DJDAR 868 (9th Cir. Feb. 4, 2019), agreed the doctrine needs to be reviewed by Congress.

In February, the 9th Circuit remanded Horton back to district court.

"The statutes themselves do not say anything about qualified immunity. This is a judge-made concept," he said. "I think there's probably a good argument that it really should be a matter for Congress to take up."